If drugs and medical devices undergo a product life cycle, so do drug and medical device litigations. We are currently laboring in the relatively early stage of a Multidistrict Litigation, where the court seems terrified of making any substantive decisions. We get no rulings. Rather, the parties are forced to listen to lectures about the
E.D. Michigan Dismisses Hernia Mesh Case for Lack of Safer Alternative
A product is not defective simply because someone was harmed by it. That seems a simple enough point. Courts often acknowledge it, though sometimes in a perfunctory, mumbling fashion. What gives teeth to the mumbling is when state law requires the plaintiff to show a safer alternative product. If really pressed, many plaintiffs cannot articulate…
Alabama Supreme Court Imposes Tough Standard on Safer Alternative Design
As the calendar turns from August to September, it is time once again to concede the strength of the Southeastern Conference. You probably think we are referring to college football or basketball, in which teams from Alabama, Arkansas, Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, South Carolina, Tennessee, and Texas prevail with grinding monotony. [We have a feeling that OJ’s old college squad, USC, will have an ugly time of it against Alabama in the ostensibly neutral site of Jerry World this weekend.] But, no, we are talking about product liability law. [For the moment, we are pretending that the Weeks innovator liability abomination in Alabama never happened. Moreover, the Alabama legislature eventually cleaned up that mess.] Today we are focusing on the safer alternative requirement in design defect cases. It occurs to us that some very good cases on this issue come out of the SEC. In the beginning of the year, we discussed a Mississippi case, Mealer v. 3M, where the court dismissed a case on the ground that an elastomeric respirator was not a safer alternative to a cheap paper respirator mask. They were two entirely different products, fundamentally different in terms of operation, longevity, and expense. Consumers might have all sorts of important reasons, aside from safety, to choose one over the other.
[Readers who are especially nerdy or possess especially good memories might point out that in July we bemoaned a Louisiana opinion permitting a plaintiff to suggest that other drugs could constitute a safer alternative to the drug at issue. To our mind, different drugs, which consist of different molecules with entirely different risk-benefit profiles, are separate products and cannot be treated as a safer alternative that can shame other drugs out of existence. Under the plaintiff’s (and, unfortunately, the Louisiana court’s) theory, jury verdicts might drive all drugs that treat, say, diabetes, out of the market except one. And even that one would not be safe from attack. Or, to veer away from drugs and devices, we might as well shut down Harley-Davidson, since motorcycles are less safe than other modes of motorized transportation. Live to ride, ride to live? Not anymore. But don’t worry too much. You can still sing “Born to be Wild” on your Hydra Glide. The recent Louisiana error stands as an aberration. As Bexis pointed out in a magnum opus blogpost that strolled down bone screw memory lane back in 2013, Louisiana has quite a lot of good safer alternative decisions.]
Today’s case, Hosford v. BRK Brands, Inc., 2016 Ala. LEXIS 91 (Ala. August 19, 2016), sees the Alabama Supreme Court apply an even stricter test in pouring out a plaintiffs’ case on the ground that the proposed safer alternative was a separate product altogether. The facts of Hosford are grim. A four-year-old girl died in a fire that destroyed her family’s mobile home in May 2011. The fire began in a faulty electrical outlet in the girl’s bedroom. Her family sued the manufacturer of the smoke alarms in their mobile home. The theory was that the smoke alarms were defectively designed because they relied solely on ionization technology which, the plaintiffs alleged, failed to give adequate warning to allow an escape in the event of a slow smoldering fire. There are dual sensor smoke alarms on the market that employ both ionization and photoelectric technology. According to the plaintiffs, such alarms would have roused the family in time to save the little girl. After the plaintiffs presented their case at trial, the defendant moved for judgment as a matter of law. The trial court mostly granted that motion, and only one claim went to the jury. The jury ultimately returned a verdict in favor of the defendant.…
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